Positive Action for Women in Employment: Time to Align with Europe?
| DOI | http://doi.org/10.1111/j.1467-6478.2006.00345.x |
| Author | Noreen Burrows,Muriel Robison |
| Published date | 01 March 2006 |
| Date | 01 March 2006 |
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 1, MARCH 2006
ISSN: 0263-323X, pp. 24±41
Positive Action for Women in Employment:
Time to Align with Europe?
Noreen Burrows* and Muriel Robison**
In recent years positive action to improve women's position in the
labour market has risen up the political agenda, with measures rang-
ing from quotas to special training. The legal framework has been
slower to change. Initially seeking to eliminate all forms of discrimi-
nation, it now reflects a more sophisticated approach, attempting to
achieve substantive equality. This may encompass measures which
appear to disadvantage men but are aimed at rectifying women's
structural, economic or historical disadvantage. We investigate the
limits imposed on EU member states' ability to take positive action
under Community law, and examine the much narrower provisions of
the Sex Discrimination Act. We argue that the time is now ripe, with
the ongoing review of equality law, to reappraise domestic law and to
use the freedom provided under Community law to expand the scope of
positive action under the Sex Discrimination Act.
INTRODUCTION
In this article we explore some of the ways to conceptualize positive action
measures in relation to sex discrimination in the context of the law of the
European Community (EC) and of Great Britain.
1
We explore the existing
provisions, and attempt to conceptualize them in an equality framework and
24
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* School of Law, University of Glasgow, Stair Building, 5±8 The Square,
Glasgow G12 8QQ
** Equal Opportunities Commission Scotland, St Stephen's House, 279 Bath
St, Glasgow, Scotland
n.burrows@law.gla.ac.uk muriel.robison@eoc.org.uk
The views expressed in this article are those of the authors. They do not represent the
position of the EOC.
1 Because of the considerable differences, we do not discuss discrimination law as it
applies in Northern Ireland.
make proposals for extending British law to align it with European
developments. These two legal orders are inextricably linked in this area
since British law must not go beyond what is permissible in terms of EC law.
At the same time the United Kingdom, as a member state of the European
Union, is obliged to implement EC law and has recently legislated to
introduce positive action measures in the area of religion and belief and
sexual orientation.
2
It has been argued that the approach of EC law in relation to sex
discrimination in employment and related matters is not as rigidly sym-
metrical as the provisions of the Sex Discrimination Act (SDA).
3
A sym-
metrical, or formal, approach is one that seeks to eliminate discrimination on
the grounds of sex rather than to eliminate discrimination against women and
is defined in legal terms as equal treatment of men and women.
4
With some
limited exceptions,
5
the SDA seeks to eliminate discrimination against both
men and women even though it is widely accepted that women suffer greater
disadvantages than men in the labour market. By contrast, the Equal Treat-
ment Directive (ETD), whilst acknowledging the central importance of the
equal treatment principle, recognizes the need for measures that will achieve
substantive equality.
6
More recent European legislation, in the form of the
amended Treaty provision in Article 141(4)EC and the General Framework
Directive, goes further towards substantive equality and is more permissive
in the freedom accorded to member states to use positive action measures.
7
Thus there is currently a divergence in British law, both between the British
and the European approaches to positive action, and between the provisions
of the SDA (and the Race Relations Act (RRA)) and the more recently
introduced Regulations on Sexual Orientation and Religion and Belief,
which reflect more closely current European approaches. We argue that the
Discrimination Law Review, set up by the government to consider the
opportunities for creating a clearer and more streamlined legislative frame-
work, provides an opportunity to reconsider the law in this area and to
25
2 The Employment Equality (Religion or Belief) Regulations, S.I. 2003 No. 1660; the
Employment Equality (Sexual Orientation) Regulations, S.I. 2003 No. 1661.
3 A. McColgan, Discrimination Law: Text, Cases and Materials (2005, 2nd edn.).
4 Both terms convey a sense of equality before the law irrespective of the context in
which discrimination law operates.
5 See below, p. 34.
6
Council Directive 76/207/EC of 9 February 1976 on the implementation of the principle
of equal treatment for men and women as regards access to employment, vocational
training and promotion, and working conditions, OJ/9 February 1976/L39/40.
7 Article 141(4) TEC and Council Directive 2000/78 of 27 November 2000 establishing
a general framework for equal treatment in employment and occupation, OJ/27
November 2000/L303/16. Article 7 of the Directive states that `with a view to
ensuring full equality in practice, the principle of equal treatment shall not prevent
any Member State from maintaining or adopting specific measures to prevent or
compensate for disadvantages linked to any of the grounds' referred to in the
Directive.
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School
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